Wednesday, January 7, 2015

A Smorgasbord of Fourth Amendment Issues

The Tenth Circuit published United States v. Denson last week. The decision is perhaps more notable for what it refuses to decide than for what it actually decides. It is a Fourth Amendment case (and yes, the defendant loses). It involves the search of a house pursuant to an arrest warrant. Mr. Denson was on the lam. Officers found his name on a residential Wichita utility account. So they went to the residence, armed only with the arrest warrant (not a search warrant), entered it, and arrested Denson (they also found guns, which felons like Mr. Denson are not supposed to possess).
The Tenth reminds us that, in Payton v. New York, the Supreme Court said that "an arrest warrant founded on probable cause implicitly carries with it the authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is present within."
Initially, we note one thing that was not at issue: whether the defendant actually lived at the residence (he did). The case concerns whether the officers had "reason to believe" that Denson was at home at the time of the search.
The Court ultimately says yes, but it skirts an issue before doing so: whether "reason to believe" is synonymous with "probable cause." The Court reminds us that, under Tenth Circuit precedent, it is something less than probable cause. But other Circuits equate the phrase with probable cause. The Court avoids this conundrum by finding that the officers had probable cause to believe that Denson was at home based on four facts:

Denson recently opened the utility account, and officers were unaware that he had any other residence (we pause to note that this fact alone does nothing to establish that he was home at the time of the search);

Officers did not think that Denson had a job, making it likely that he would be at home at 8:30 a.m. on a weekday (not a bad point);

Denson was on the lam, and where better to hide than your home? (the opposite seems equally plausible to us; why not hide out someplace other than your own home?); and

the electric meter "was whirling away" on this "wintry Wichita morning" (we have no idea how this establishes Denson's presence in the home)

So, officers have probable cause to believe that an absconder is at home at 8:30 a.m. on a weekday morning so long as the officers think that the absconder is unemployed and the electric meter is "going crazy." It's funny, the Court admits: "Even together [these facts] hardly prove a suspect is at home" (we would agree with that). So, probable cause is now the equivalent of "hardly prove." Whatever that means.

The Court skirted two other issues in this one:

whether fresh footprints in the snow further added to the probable cause equation (ignored because Denson claimed the officers were trespassing when they saw the prints); and

whether the use of a Doppler radar device capable of detecting from outside the home "the presence of human breathing and movement within." The Court left for another day the constitutionality of this device, but hinted that a warrant might be necessary.

The case involves a second issue: whether the protective sweep of the home, after officers entered, was constitutional. The Court said yes because Denson was a fugitive gang member with a history of violent crimes, and a second resident also had an outstanding warrant. On this latter point, the Court noted that the Doplar radar apparently identified only one person in the residence, negating this justification, but then the Court backed off, suggesting that maybe the device was incapable of distinguishing between one person and several (but wouldn't this be on the government to establish?).

If you've made it this far, one final issue: whether the seizure of firearms was proper under the plain view doctrine. The Court rejected the argument that the guns were not necessarily contraband, noting that they were found in the home of a felon (think constructive possession here). So, probable cause to seize the guns existed.